Wednesday, 9 December 2015

Preventing Retaliation Evictions as per sections 33 and 34 of the Deregulation Act 2015 (ENGLAND ONLY)

Following on from my last post, I would again advise that if you have properties in ENGLAND, that you read the Deregulation Act 2015 to familiarise yourself.

The below is correct as of writing however as per all UK law's and government led initiatives, it is subject to change with no notice so please ensure you check the relevant pages on gov.uk before enacting upon the information given

From 1 October 2015 1, sections 33 and 34 of the Deregulation Act 2015 came into force in ENGLAND ONLY, “preventing retaliatory eviction”

Basically, the new rules have been introduced to protect tenants from their landlord serving a section 21 (two months’ notice), Not only can it prevent a section 21 being served, in certain circumstances relating to HHSRS (Housing Health and Safety Rating System) The new Act can even render a valid service of a Section 21 INVALID

Deregulation Act 2015

The new legislation creates two protection layers for tenants who fear a retaliatory eviction, if they have complained about the condition of their rented property.

The first protection states a Section 21 notice CANNOT be served within a certain time period when a landlord has had notice served on them under HHSRS (This is the case EVEN IF any works contained in the HHSRS notice are completed within the LHA’s given time-scales).

The Second protection states that any tenant that asks for works to be completed and a section 21 notice is subsequently served in retaliation to that request, then the notice may be rendered invalid.

If a HHSRS notice has been issued to a landlord in respect of a residential dwelling the landlord CANNOT serve the tenant with a section 21 notice for at least 6 Months from the day of the service of the HHSRS (For suspended HHSRS Notices – 6 months from when the suspension ends)

For this purpose, a HHSRS notice is classed as: -

An improvement notice served under section 11 of the Housing Act 2004 (category 1 hazards), and/or

An improvement notice served under section 12 of the Housing Act 2004 (category 2 hazards), and/or

A notice served under section 40(7) of that Act (emergency remedial action).

As always, it isn't black and white with new legislation and grey areas are created; e.g. we all understand the 6-month rule is now in place and we cannot issue a Section 21 Notice if we are served with a HHSRS notice under the above guidance, however there are exclusions when a section 21 CAN be issued and the 6-month rule can be disregarded:

If the improvement notice was served in error or is quashed
Where a HHSRS notice has been served but the works specified in the notice was caused by the tenant being in breach of their tenancy
The Section 21 Notice can be issued, if the “Property is genuinely on the market for sale.”

How to define whether a “property is genuinely on the market for sale”, is not included the legislation, therefore it appears that a court will need to be used to decide this very important factor, however, there is some guidance on what is NOT classed as “genuinely for sale”

For example, if the landlord intends to sell the landlord’s interest in the property to—

A person associated with the landlord,

A business partner of the landlord,

A person associated with a business partner of the landlord, or

A business partner of a person associated with the landlord. (see the legislation to define these roles more thoroughly)

NB: The legislation DOES NOT prevent the sale to a business partner etc., however the new retaliatory eviction rules will still apply to the new owner as well as the old landlord. It is also not stating the above is a conclusive list of what is classed as NOT genuinely for sale, e.g. Putting a house on the market on the same day as serving a Section 21 Notice and then taking it off the market the following day is not likely to be classed as “genuine”,

What is HHSRS? (Housing Health and Safety Rating System)

Simply put HHSRS is “a risk-based evaluation tool to help local authorities identify and protect against potential risks and hazards to health and safety from any deficiencies identified in dwellings. It was introduced under the Housing Act 2004 and applies to residential properties in England and Wales.”

As mentioned there is also a second level of protection for tenants against retaliatory eviction for requested repairs to the property

In order for a section 21 notice to be classed as invalid, there are rules that must be followed in a specific order.
Second Level of Protection

A Section 21 Notice will be invalidated and any possession claim will fail when ALL of the following applies (and in the following order)-

1. Prior to the section 21 notice being given, the tenant made a complaint in writing to the landlord (or agent) citing the condition of the property.

2. Upon the tenant making a complaint, the landlord -

Did not respond within 14 days, or

Provided an inadequate response to the complaint (NB: the landlord is required to respond and providing the response is ADEQUATE, any section 21 served at that stage would be valid.) and/or

Gave the tenant(s) a Section 21 Notice in relation to the property.

And following the response of the landlord (or lack of response after 14 days)

3. The tenant will then need to have made a complaint to their relevant LHA regarding the same issue (or mostly the same) as the complaint made to the landlord, and

4. The LHA has then served a relevant HHSRS notice in response to the complaint and the section 21 notice was not given before the tenant’s complaint LHA (it was given before the service of the HHSRS notice).

NB: the complaint can refer to any part of the property including common parts which the tenant is entitled to use (e.g. in HMO).

It is important to stress that above must be followed strictly! and if an order for possession is made before point 4 above (service of a HHSRS notice) even where the section 21 may have been given after a written request for repairs, the notice will still be valid.

Just to clarify, a landlord is still able to issue a Section 21 Notice to enable them to sell a property if required. Regardless of the above new rules, if the “property is genuinely on the market for sale” it will be classed as a valid Section 21 Notice.